Gill v R [1999] WASCA 68

Court of Appeal (WA)|1999-06-23|Before: Parker J, Pidgeon J, Wallwork J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GILL -v- R [1999] WASCA 68

Criminal law - Appeal - Sexual penetration - Charge - No corroboration warning - Not required

Criminal law - Appeal - Questions during police investigation and at trial - Admissibility - Whether miscarriage

A child v Andrews (1995) 12 WAR 552

Butun v R, unreported, CCA SCt of WA; Library No 8717

K v R, unreported; CCA SCt of WA; Library No 980276

Kaighin v R (1990) 1 WAR 390

Roissetter v R (1984) 11 A Crim R 325

Varney v R, unreported; CCA SCt of WA; Library No 960463; 23 August 1996

1 PIDGEON J: I agree for the reasons of Parker J that the appeal should be dismissed.

2 Ground 2 complains that the question on the video interview, "Why would the complainant lie?" was wrongly admitted into evidence. Had this evidence been objected to then I consider it would follow from the case of Palmer v R [1998] HCA 2; (1998) 151 ALR 16 that the objection should be upheld.

3 It was not contended that the video interview, as such, was inadmissible through its not containing any admissions to establish the offence. In the interview the appellant admitted to making an approach to the complainant asking to kiss her. However, he denied in emphatic terms doing anything improper apart from this. The general rule is that the whole of the statement must be given in evidence, including parts favourable to the accused person (R v Higgins [1828] EngR 201; (1829) 3 C & P 603, 172 ER 565; Cross on Evidence, 5th Aust ed, 448, para 17335 and 929, para 33455). This would not prevent matters of the type the subject of the ground of appeal being deleted from the statement if requested by the defence. I consider, on the facts of this case, it would not have been open to the Crown, of its own motion, to delete portions of the statement without consulting the defence. Any deletion could well have spoilt the flow of a narrative making the denials clear and convincing. It is important, therefore, for the prosecution to consult with the defence and this the prosecution did prior to the trial. As a result of this certain portions were deleted. If the defence wished further portions deleted and if the prosecution were not willing, then it would be for the defence to ask the trial Judge to rule on it. A counsel, very experienced in the criminal jurisdiction, represented the appellant and no such request was made. I consider it understandable that no such request was made as I consider it could well be seen that the appellant's denials were more convincing in the context of the whole statement and they would have been if portions were deleted. I propose to refer to the statement in this regard.

4 The offence was alleged to have occurred at about 1.30 am on 16 February 1997. The applicant was interviewed at 4.00 am, within three hours of the allegation. In that interview he spontaneously, emphatically and consistently denied that he did anything improper to her. In the course of his doing this he was asked, "Why would you think that this girl would say that?" and he replied, "I wouldn't have a clue but I didn't do that." He then said that he just asked her if she wanted a kiss. She did not say anything, "but just came out swinging at me." Shortly after that he said, "I just put my hands up in the air and just copped everything she gave to me." He referred to the bouncers taking her out. He was then asked, "Why do you think that this girl would single you out and make that allegation about you if all you claim to have done is asked for a kiss?" He replied, "I don't know. There's something wrong with some girls sometimes." He later said, "I was with my mates, I was talking. She walked past and I said to her ---I said, 'Give us a kiss' and that's how --- and then she just turned around and she looked at me with these funny eyes and just turned around and started swinging at me like she didn't like me for some reason." After denying with emphasis each of the allegations put to him, the interview continued:

"Q. So what -- what are you suggesting then, that this girl has just made it up?

A. I don't know. Some girls are just weird. She just didn't like me for some reason.

A. Because if you asked a girl for a kiss and she don't like you, what is she going to tell you? She is going to go and tell you to get stuffed.

Q. Well, she was quite distressed when I spoke to her, but whether or not her story is true is something that I can't verify because I wasn't there, but she's - - other people have seen the incident that took place, they have seen her demeanour and have heard from her shortly after - -"

5 I could well understand the defence considering that the statement in its original form was more convincing as to the appellant's account than it would be if there were the deletions now referred to. It explains why, on the appellant's view, allegations were made when they may not be true and this is a question that could be in the jury's mind if the matter had not been adverted to.

6 It was nevertheless, in these circumstances, necessary for the trial Judge to direct the jury how they are not to use questions of this type and this his Honour did in clear terms. I consider in all these circumstances it cannot be said that the trial miscarried.

7 WALLWORK J: The facts and the general background to this matter are set out in the reasons for judgment of Parker J. I will not repeat them except as that is necessary.

8 There were two things wrong with the video interview which was admitted into evidence. The first was that the detective who was questioning the appellant, after putting the complainant's allegation to the appellant said, "Allright. Why would you think that this girl would say that?" The answer given was, "I wouldn't have a clue but I didn't do that." The appellant was further questioned about the allegation. It was then put to the appellant, "Allright. Obviously the allegation that she has made is very serious...that's part of the reason that you are here...in relation to that allegation. Why do you think that this girl would single you out and make an allegation about you, if all you claimed to have done is ask her for a kiss?" The answer given by the appellant was, "I don't know. There's something wrong with some girls sometimes." After further questioning, during which the appellant had told the police officer that the allegations were untrue and towards the end of the interview, a question was asked of the appellant, "So what...what are you suggesting then, that this girl has just made it up?" The answer given was, "Yeah". The question was then asked, "Well, why do you think she would do that?" The answer given again was that the appellant did not know.

9 In an attempt to rectify that situation, in his summing up the learned trial Judge said:

"Let me move to another aspect of the evidence. You have heard evidence and seen evidence on video, members of the jury, of the detective asking the accused in effect questions along these lines: 'Why would the complainant be making this up? Why would she say that you sexually assaulted her in this way if it was untrue?'..."

10 The learned Judge then referred to the learned prosecutor having made submissions along the same lines to the jury and said:

"He made a submission to you centred upon the motive of the complainant. He pointed out the complainant had no motive to put herself through this trial and to make these allegations, in effect in the context of making a submission to you that she must be telling the truth."

"I just have one comment about that approach, that process of reasoning and it is this. It is of course impossible for an accused person to say what was in the mind or what is in the mind of the person accusing him or her of wrongdoing. People have all sorts of motives for doing all sorts of things. To look into the mind of your accuser is something which is simply not possible and so there is a tendency to view such a question as an unfair question. It is not a fair question to ask of someone: well, why would she be telling us this? Why would she be accusing you of doing that?, when really it is for the complainant to answer that question. She is the only person who knows what is in her mind and to ask an accused person to speculate about it is to some extent unfair. More importantly, to ask that sort of question rhetorically as it were - why would the complainant be accusing the accused of doing this - has a tendency to reverse the onus of proof and so more importantly, there is a danger if you focus too much on that question when you are deliberating upon the matter that you might forget where the onus of proof lies."

12 The learned Judge went on to explain that the onus of proof was upon the prosecution. That it was not for an accused to prove some motive on the part of a complainant to falsely accuse him of something and to approach the matter thinking in that way: "Deliberating upon that basis, presents dangers, members of the jury."

13 The learned trial Judge told the jury that it is not for the accused to satisfactorily answer, if he can, why the complainant is making what he says is a false accusation. His Honour warned the jury against that tendency to reverse the onus of proof.

14 In my view although the learned Judge did all he could to undo the damage which had been done by the video, the trial by then had miscarried. I say that having in mind the reasons in Palmer v R [1998] HCA 2; (1998) 151 ALR 16 in which Brennan CJ, Gaudron and Gummow JJ, when discussing the principles in a case where a person had been cross-examined along the lines "why she would make this up?", and where no objection had been taken to the questions at the time, said at p 20:

"But the fact that an accused person has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts. If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is 'oath against oath'. In such a case to ask an accused the question, 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused."

15 The learned Judges then discussed decisions of Courts of Criminal Appeal in New South Wales, Queensland and Victoria.

"Although these and similar directions quoted by Brooking JA correctly instructed the jury on the issues for their determination and the onus and standard of proof of guilt, we doubt whether the directions were capable of neutralising the prejudicial effect of the opening and closing questions of the cross-examination of the appellant. Having acknowledged that he could offer no reason to impeach the credit of L who had been showing her disbelief in his denials in evidence in chief, his protestations of innocence may well have rung hollow in the jury's ears. In our opinion it is necessary to allow the appeal on the ground that the asking of the questions in the circumstances of the case may have occasioned a miscarriage of justice. If that were the only ground of appeal, the Court would order a new trial."

17 In coming to that conclusion their Honours had referred to the words of Hunt CJ at common law in R v Uhrig, unreported; CCA (NSW); 24 October 1996 where his Honour pointed out that to ask the question "why would the witness lie?" invites the jury to speculate...to the conclusion that, unless they are satisfied by the accused that the witness has a motive to lie, they should accept the evidence of that witness and convict. In my view, that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case.

18 In this case there was, however, a further problem arising out of the video interview. That was that after the appellant had told the police officers that he did not know why the complainant would single him out and make the allegations against him, the detective interviewing him said, "In fairness to you, I have to tell you that I have spoken to a number of people including your friend Adrian..." The appellant answered, "Yes." The detective said, "...and he has told us certain things about what he saw...." The answer was, "Yeah, he was there as well." The appellant was then asked who else in his group was there. The detective was told that "there was Lloyd, Brian and Adrian." The appellant told the detective who those people were. The detective said, "All right. Obviously these gentlemen - other gentlemen will have to be spoken to - to verify the story one way or the other."

19 Further on in the interview another question was asked concerning that matter. The detective said, "Well, she was quite distressed when I spoke to her, but whether or not her story is true is something that I can't verify because I wasn't there but she's...other people have seen the incident that took place, they have seen her demeanour and have heard from her shortly after she was seen, as you say, belting you or whatever she was doing to you and she has told them the reason that she was doing that..."

20 Further on in the interview the detective said, "All right. Okay. I'm going to have to conduct further enquiries in relation to this matter." The answer was, "Okay." The detective then said, "And you may or may not be charged." The appellant said, "Yeah." The detective said, "Depending on those enquiries."

21 The jury knew that the appellant had been charged.

22 During the course of the trial and after the conclusion of the playing of the video tape, the learned prosecutor asked the detective, "Sergeant, you said at the completion of the interview that you had to make further enquiries. Did you conduct those further enquiries?" The police officer answered, "Yes I did." He was then asked, "As a result of those did you subsequently charge the accused man with the offence that he is facing today?" He answered, "Yes I did." He was then asked, "Sergeant during the course of that video the accused man mentioned a number of his mates by name. There was a Lloyd James, an Adrian, a Henry and a Phil. He referred to Henry and Phil as two bouncers from the Frost Bites Nightclub?" The answer was, "That's the case, yes." He was then asked, "You recall that?" His answer was, "Yes." He was then asked, "You mentioned during that video record of interview that obviously those people would be spoken to to verify the story one way or the other?" His answer was "That's correct." He was then asked did he subsequently speak to those people. He said he did. He told the jury that he had taken statements from three of the four persons he had mentioned and that those statements had been provided to the defence. Those people were named. The officer said he had spoken to the fourth person by telephone but had not obtained a statement from him because he had declined to provide a statement.

23 In cross-examination the detective was asked, "You've told us that you ended up by obtaining statements from some people..." The three people were named. He said that was correct. He was then asked whether any of them had said something to him. That question was objected to.

24 In the course of his cross-examination the appellant was asked by the learned prosecutor, "He said to you, didn't he, in that video record of interview that he will talk to the people that you have named?" The appellant answered, "Yes that's right." He was further asked, "All right and we'll investigate it further. He will make further enquiries. That was fair of him wasn't it?" The answer was, "Mm." He was then asked, "In your view?" His answer was, "Yes."

25 In his summing up the learned trial Judge, having directed the jury concerning it being to some extent unfair to ask them to speculate about why a person may have made a complaint said:

"Let me move now, members of the jury, to another matter. My note simply reads 'the absent mates,' and I am sure you know what I mean by that."

26 His Honour told the jury something about the evidence they had heard in this regard and then said, "You haven't heard from the absent mates and they were mentioned as Lloyd and Adrian and two others. You've heard too that the police went out and took some statements from these mates or some of them, and that those statements had been made available to the defence."

27 The learned Judge then referred to what the detective had said on the video and told the jury that although the statements had been made available to the defence, it was not for the defence to call any of the mates "because it is not for the accused to establish his innocence in this case."

28 His Honour reminded the jury of the onus of proof and told them that the Crown had not called any of the mates, although it could have. He told the jury:

"You should in those circumstances, members of the jury, proceed on this assumption and this assumption only: you should proceed upon the assumption that they could not have said anything which would have assisted the Crown in its case. That is the common sense approach and that is the approach which you must take in this case. The fact is - common sense suggests this, does it not? - if the mates could have assisted the Crown in its case by saying something which, for example supported what Miss R said happened, then the Crown could have called that mate or those mates and it didn't happen."

29 His Honour told the jury again that the Crown bore the onus of proof and that the jury should not assume that those persons could have said anything which supported the Crown. He also said:

"I also want to say briefly again that the comment by the detective on the video tape about having spoke to Adrian doesn't go much further than that, but you should not assume from that comment that Adrian could have said anything against the accused either."

30 He pointed out that Adrian had not been called to give evidence. The learned Judge again told the jury that they could not assume that he could have said anything that would have been useful to the Crown. He said:

"The detective's assertion in the video tape that he had spoken to Adrian to the extent that it might suggest that Adrian had told him something which was against the accused, adverse to the accused, is not evidence in this case. The fact is that Adrian hasn't given evidence. He hasn't taken an oath. He hasn't been placed in the witness box and you should not assume he could have said anything of assistance then."

31 After the jury had retired the learned prosecutor told the Judge that prior to the trial the defence counsel had raised the question of editing portions of the video interview such as questions to the effect of, "Why would the complainant make this up?" The learned prosecutor said he had discussed that matter with defence counsel and had informed defence counsel that it was not quite Palmer's case, because "in fact it's going to transpire that there is going to be an explanation given by the accused." He said that that was why he had addressed the jury as he did in his closing address. "I thought I made it clear that there were these two explanations being given as to why she said this: one by the accused; that is he simply asked her for a kiss and he laughed when she stumbled, or is it the case that she is actually telling the truth?"

32 The learned Judge did not take the matter further with the jury.

33 There was also some discussion with the learned trial Judge about the "absent mates". The learned trial Judge did not recall the jury concerning that matter either. The jury later returned a verdict of guilty.

34 In my opinion, on the authority of Palmer's case, the video should have been edited to delete the questions concerning a possible motive on the part of the complainant to complain, if the video was to be used in evidence. Also the references to the "absent mates" should have been removed because the jury might have gained the impression that those persons would not have assisted the the appellant.

35 The question then arises whether due to the admission of the tape without editing those sections, the appellant may have lost a chance of acquittal.

36 In Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 Fullagar J said:

"It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried."

37 In this case in my view there were two substantial departures from what should happen in a criminal trial. They concerned the reference in the evidence to the possible motive of the complainant and the "absent mates".

38 In Leary v R [1975] WAR 133 at 137 Jackson CJ said:

"It was submitted for the Crown that notwithstanding any defects and irregularities in the trial which we might consider had occurred, the verdict should stand as there has been no substantial miscarriage of justice. I cannot agree with this. It is probably true that not each matter raised in the grounds of appeal would call for the conviction to be set aside, but taken together they lead to the conclusion, in my opinion, that the applicants have not had in all respects the fair trial to which the law entitles them. An 'aggregate of faults' may properly lead to a conclusion that a trial, as a whole, has miscarried: R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 331; (1970) ALR 727."

39 In my opinion the questions concerning the possible motive of the complainant which were asked by the detective on the video would, themselves, have been sufficient to cause a miscarriage of justice on the authority of the Palmer decision already referred to. That was added to by the introduction of the "absent mates".

40 In all the circumstances I consider that there has been a miscarriage of justice and that the conviction should be set aside and a re-trial ordered.

41 PARKER J: The appellant was charged in the District Court on indictment with one count of sexual penetration without consent. The Appellant pleaded not guilty to that charge but after trial was convicted and sentenced to three years imprisonment, with eligibility for parole. This is an appeal against that conviction.

42 The grounds of appeal as amended at the hearing are:-

1. The learned trial Judge erred in law in failing to direct the jury that it was unsafe to convict the appellant on the uncorroborated evidence of one witness.

2. There was wrongly admitted into evidence questions by the interviewing detective and the prosecutor of the appellant akin to "Why would the complainant lie?" and the appellant's answers thereto.

3. The evidence having being admitted into evidence the learned trial Judge failed to direct the jury to totally disregard that evidence and the comments on it made by the prosecutor in his closing address.

4. There was wrongly admitted into evidence statements by the interviewing detective along the lines that other witnesses had confirmed the complainant's account to the police.

5. The evidence having been admitted into evidence and no such witnesses having been called, the learned trial Judge failed to direct the jury to disregard that evidence altogether.

The learned trial Judge erred in law in failing to direct the jury that it was unsafe to convict the appellant on the uncorroborated evidence of one witness.

43 Section 36BE(1) Evidence Act 1906 (WA) provides that there is no requirement for a trial Judge to warn a jury as to the dangers of convicting on the uncorroborated evidence of one witness unless satisfied that such a warning is justified in the circumstances.

44 It is the effect of s 50 Evidence Act that even where a warning is given to a jury, there is no mandatory requirement as to the form of the warning.

45 In Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 it was held that paragraph (a) of s 36BE of the Evidence Act dispensed only with the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class and did not affect the requirement to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.

46 Brennan, Dawson, Toohey, McHugh and Deane JJ were of the view that paragraph (b) related to a warning that it was unsafe in the circumstances of the particular case to convict on the uncorroborated evidence of the particular victim.

47 Brennan, Dawson and Toohey JJ held that if a judge refused to give a warning required by general law, the refusal was reviewable on appeal and the conviction was liable to be quashed as unsafe and unsatisfactory if it were found that the refusal to warn left a perceptible risk of miscarriage of justice.

48 The question whether a corroboration warning should be given remains a discretionary decision for a trial Judge having regard to the circumstances of the case. Where a warning is given, there is no standard formula which need necessarily be followed. As is made clear by Uhle v R, unreported; CCA SCt of WA; Library No 970149; 11 April 1997 and Boyle v R, unreported; CCA SCt of WA; Library No 980125; 24 March 1998 the warning should be shaped to accommodate the nature of the case.

49 The appellant submitted in effect that in the present case several features required a specific direction to the jury about the potential unreliability of the complainant's evidence, in that no independent evidence corroborated the complainant's allegations. It was contended that, at least when taken in combination, these features of the case gave rise to a perceptible risk of a miscarriage of justice in the absence of an appropriate warning. Those features are examined in turn:-

* The absence of independent evidence corroborative of material aspects of the complainant's evidence, including the most critical allegation of digital penetration.

50 The absence of independent evidence was made starkly clear to the jury in the charge of the learned trial Judge. The fact that there is no independent evidence is not, in itself, a reason requiring a corroboration warning. It is merely the condition precedent which gives rise to the question whether a warning is required, that question being decided in light of the other circumstances of the trial.

* The complainant declined the police offer of medical examination by a doctor from the Sexual Assault Referral Centre.

51 The evidence indicates the possibility of a medical examination was raised by the police on the basis that the complainant could be examined or have tests taken. It was not put to her that this was a necessary or desirable component of their investigation. The complainant did decline the offer of a medical examination. Her reasoning was explained by her as:-

"There was no damage done so...at the time I just didn't feel the need.....There was no bruising....I just didn't feel there was any need for testing."

52 The police officer who made the offer to the complainant explained in cross examination that "I asked her some questions in relation to her discomfort or otherwise, and as a result of those answers I didn't force her". He went on to suggest that she could see her own doctor the next day if she felt the need.

53 While this circumstance is capable of supporting an inference that the complainant was avoiding medical examination, that cannot be said to be an obvious inference. Nevertheless, the trial Judge dealt specifically with the significance of the complainant declining a medical examination in this way in his charge:-

"All that is said on behalf of the accused man is that the complainant did not agree to undergo a medical examination for the purposes of collecting forensic evidence and the submission is made to you that that is consistent with the defence case of there being a false complaint in this matter."

54 The possible significance of this matter as telling against the complainant's credibility was thus made the subject of special comment by his Honour.

* The complainant was affected by alcohol and could well have consumed 11 standard drinks during the evening prior to the incident.

55 The quantity of alcohol asserted in this ground is an assertion by counsel on appeal. The evidence at trial was that she had consumed four glasses of wine and one beer and then one Sub-Zero alcoholic soda. There was variation in her account as to where this was consumed. The effect that the alcohol had on the complainant was also estimated by the complainant under cross examination when she rated herself 6 on a scale of 1 (sober) to 10 (paralytic), and by the police officer who said the complainant was "very slightly affected".

56 His Honour did draw attention to the question of alcohol consumption in his charge, though the comments were more directed to reminding the jury of the submission of defence counsel that her evidence as to where she had consumed the alcohol had varied, which could call in to question her credibility, rather than to whether she might have been so affected by alcohol that her evidence was unreliable. Again, it cannot be said that this last possibility was a likely view of the evidence nor was it an issue pursued at trial.

* The accused denied the sexual penetration when interviewed by the police and gave evidence to the same effect.

57 As would be expected the learned trial Judge in his directions to the jury expressly pointed out that the accused had consistently denied the allegations of the complainant. That aside, denial or consistent denial in itself is not a factor which calls for a corroboration warning. It is a matter material to credibility and was treated as such.

* The distressed condition of the complainant was left to the jury without any direction as to the use which could be made of it or without the observation that it could have been equally attributable to conduct by the appellant which fell short of penetration.

58 The factual context is of significance to this contention. The complainant's evidence and the Crown case was that as the complainant was walking passed the accused (who was a stranger to her) he grabbed her, kissed her, pushed her against a wall and digitally penetrated her. The complainant said in her evidence in chief that she responded to the accused by pushing him off, swearing at him and hitting him. The accused's evidence and the defence case was that he had approached the complainant, asked if he could kiss her, but did not do so, nor did he touch her. He says she stumbled, he laughed, and she attacked him with considerable violence.

59 The evidence indicated a marked reaction and significant change of mood by the complainant as an immediate consequence of the incident described above. Not surprisingly this appears to have been the subject of detailed submission in the addresses of both counsel. In the context of a short trial in which his Honour's charge followed immediately after addresses on the same day, his Honour reminded the jury of the Crown submission that prior to the incident the complainant was happy and enjoying herself, and that immediately after the incident she was grossly affronted, crying and intensely distressed.

60 The learned trial Judge then reminded the jury that it was the defence case that there was no touching, simply a request for a kiss. In response to his request, the complainant stumbled, he laughed and she attacked him. His Honour then went on to observe that this needed to be evaluated in the circumstances of the night, particularly that it had been a hot day, the complainant had been at a party prior to going to the nightclub, and that she had consumed alcohol. The trial Judge presented the defence case that the complainant was tired and emotional, and when confronted by a "rude offensive individual getting in her face" she reacted in a predictable way. Therefore the jury were invited to accept that the complainant's violent reaction may be explained by those circumstances rather than the conduct she alleged but which the accused denied.

61 On the evidence, and the cases for the Crown and the defence, there was no real scope for any factual middle ground. This had not been explored in the course of evidence. No adequate factual foundation existed. His Honour's summaries of the respective cases on this point were fair and adequate to put the issues to the jury.

* Despite the stark conflict in the evidence of the complainant and the appellant, which the learned trial Judge finally put to the jury as permitting the accuracy of only one account, it was possible that the truth lay midway between the two accounts with the appellant having kissed the complainant and put his hand under her dress without achieving penetration.

62 His Honour stressed to the jury a number of times that they might accept the evidence of a witness in part. In drawing this issue to their attention he said:-

"Of course when you come to judge the testimony of a witness, it's not an all or nothing affair. You might accept what a witness says in part. You might reject what a witness says in part. You might accept it in whole or reject it in whole...It's not really an either or choice in that black and white sense...You might accept something of what a witness says but not accept all of it, and you will bear that in mind when judging this matter as well."

63 A fair reading of the evidence provides no footing for any factual middle ground. This possibility was not explored with the witnesses and the defence case was not presented on this basis. So far was the appellant's case at trial from the "middle ground" suggested in the proposition now advanced, that the appellant consistently denied even kissing the complainant during the course of the evidence.

64 The factual scenario outlined in this ground was not a realistic possibility given the evidence at the trial and the way the defence case was conducted on this issue. Even had it been, it is not demonstrated how that would require a corroboration warning.

65 For these reasons none of the features identified in the submissions for the appellant, in themselves, required a specific corroboration warning. Their nature is such that even when viewed in combination, they do not give rise to any obvious reason for a corroboration warning.

66 It is desirable, nevertheless to examine his Honour's approach to the issue of credibility to determine whether, in the absence of a corroboration warning the matter of credibility was left to the jury on a basis which gave rise to a perceptible risk of miscarriage of justice.

67 The trial judge opened his remarks to the jury and reiterated a number of times thereafter that "the burden of proof in this case is upon the prosecution" and that the standard is beyond reasonable doubt. He expressly explained that the jury must scrutinise the evidence of the complainant with great care before they could find the accused guilty of the charges.

"that there is no onus of proof upon the accused. The accused does not have to establish his innocence. He doesn't have to satisfy you of anything which might lead you to the conclusion that he is innocent."

69 As one illustration of his Honour's repeated stress on these matters, the following is a useful example which occurred toward the end of the charge:-

"Remember, let's go back to first principles. The onus of proof in this case as in all criminal cases is upon the prosecution. It is not on the accused. The accused doesn't have to prove anything and what is more, the prosecution must establish the case against the accused beyond reasonable doubt ... In the end, don't lost sight of the fundamental principle, the principle which requires the crown to establish the case against the accused beyond reasonable doubt."

70 In the course of emphasising the significance of the standard of proof his Honour said:-

"... if you are not satisfied, then even though you may have suspicions, even though you may think it more probable than not, that's not enough. If you're not satisfied beyond reasonable doubt, it is your duty to bring down a verdict of not guilty."

"In this particular case in fact the only way in which you can be satisfied that it happened, if you are so satisfied, is if you accept the evidence of the complainant herself - of Regina Rodrigues herself."

72 Later on he returned to this by emphasising that the Crown case depends "almost entirely upon the evidence of Miss Rodrigues", and he focused the attention of the jury on the issue of credibility when he directed them that:-

"... this is a case that turns very much upon credibility. You have heard the different accounts of what occurred on this night. You have heard allegations and you have heard denials of those allegations, so credibility - believability, as Mr Urquhart said - is at the heart of this case. ... Your task is to weigh up and analyse the evidence, using your experience, using that commonsense, to determine, where in your judgement the truth in this matter lies or to determine, more accurately, whether or not you're satisfied beyond reasonable doubt that the accused is guilty as charged."

"At the end of the day, members of the jury, there are probably a number of conclusions that you could come to, depending upon the view you take of the evidence. Clearly, as I have said, credibility is at the heart of the case and the credibility in particular of Miss Rodrigues and of the accused."

74 An important passage in the charge, for present purposes, was in these terms:-

"Another view you could take, having heard all the evidence, having heard in particular Miss Rodrigues and having heard the accused, you may at the end simply not know who is telling the truth. You may have genuinely come to the conclusion, having heard the accused, that he may be telling you the truth or he may not. You may not be able to determine finally whether you believe him or not. If that is the result that you reach having thought about the matter, then again, you will find him not guilty because if you don't positively disbelieve the accused, if you don't reject him as a witness of truth, then it is clear that you must have a reasonable doubt about the case and if you have a reasonable doubt, then you will find the accused not guilty. Only if you reject the evidence of the accused and you accept the evidence of Miss Rodrigues, only if you accept Miss Rodrigues as a witness of truth in this case and only if you are satisfied of her evidence, the truthfulness of her evidence, beyond reasonable doubt, can you find the accused - should you find the accused, guilty as charged."

75 The learned trial Judge then dealt specifically with the live issues in the evidence dealing specifically with those matters which had been raised by the defence as reflecting adversely on the credibility of the complainant.

76 This was really a straightforward case of allegations by one person denied by the accused. There were no unusual complications about credibility and no risks affecting the assessment of credibility which might go unnoticed if not made the subject of a specific warning. If a corroboration warning is to be seen to be essential in this case, it is difficult to imagine in what type of case there will not be a need for such a warning. The learned trial Judge was most careful in his directions to leave the jury under no misapprehension as to the onus and standard of proof and his observations as to possible scenarios of uncertainty were helpful and carefully and accurately explained to the jury.

77 Having regard to the special features relied on for the appellant and also to the way in which the issue of credibility was left to the jury, it has not been shown that there was any perceptible risk of a miscarriage of justice in the absence of a corroboration warning.

78 For these reasons ground 1 has not been made out.

Ground 2: There was wrongly admitted into evidence questions by the

interviewing detective and the prosecution of the appellant akin to "Why

would the complainant lie?" and the appellant's answers thereto.

Ground 3: The evidence having been admitted into evidence the learned

trial Judge failed to direct the jury to totally disregard that evidence and the comments on it made by the prosecutor in his closing address.

79 It is clear from the video record of interview which was conducted within two to three hours of the incident that the appellant was asked questions by a detective to the effect "Why would the complainant lie?" The appellant was asked "Why do you think this girl would single you out and make that allegation about you if all you claim to have done is ask for a kiss?" and later, "Are you suggesting then, that this girl just made it up? Why do you think she would do that?"

80 It is clear from Palmer v R [1998] HCA 2; (1998) 151 ALR 16 that cross examination of an appellant to show that the appellant does not know of any fact from which to infer that the claimant had a motive to lie is impermissible. The primary reason for this is identified at 20 as:-

"... to allow such cross examination would be to focus the jury's attention on irrelevancies, especially when the case is 'oath against oath'. In such a case, to ask an Accused the question 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused."

81 Whilst there may be reason, at least in some circumstances, to distinguish between cross examination at trial and pre-trial police interview, in this context the danger explained in the passage quoted is significant in both settings. It is apparent that this danger was a live issue in pre trial discussions between prosecuting and defence counsel which led to some passages of this nature being deleted from the video record. The passages quoted above remained, however. No objection was taken to them at trial by experienced counsel representing the accused. As was submitted for the Crown on appeal, this may well have been seen by those then conducting the defence to suit its purposes. In this case that may well have been influenced by a concern to avoid diminishing what may well have then been thought to be an apparent spontaneity and frankness of attitude of the appellant which could reinforce his credibility by deleting the answers to those questions and because the accused had consistently proffered to the police an explanation for the complainant falsely making her allegation against him.

82 It is clear that the learned trial Judge was alert nevertheless, to the risk inherent in this evidence that the jury would focus on the irrelevancy of the question "why would the complainant lie?", notwithstanding the defence's acquiescence in its admission. His Honour directed the jury on this issue by drawing attention to it and to the submissions of Counsel in closing concerning it, in particular a submission for the Crown to the effect that "the complainant had no motive to put herself through this trial and to make these allegations."

"... it is of course impossible for an accused person to say what was in the mind or what is in the mind of the person accusing him or her of wrongdoing. People have all sorts of motives for doing all sorts of things. To look into the mind of your accuser is something which is simply not possible and so there is a tendency to view such a question as an unfair question. ... More importantly, to ask that sort of question rhetorically as it were - why would the complainant be accusing the accused of doing this - has a tendency to reverse the onus of proof and so more importantly, there a danger if you focus too much on that question when you are deliberating upon the matter that you might forget where the onus of proof in this case lies. Remember - lets go back to first principles. The onus of proof in this case as in all criminal cases is upon the prosecution. It is not on the accused. The accused doesn't have to prove anything and what is more, the prosecution must establish the case against the accused beyond reasonable doubt, and so it is not for the accused to prove some motive on the part of the complainant to falsely accuse him of something and to approach the matter thinking in that way, asking that question, deliberating upon that basis, presents dangers, members of the jury ... It is not for the accused to satisfactorily answer, if he can, why the complainant is making what he says is a false accusation against him. ..."

84 Notwithstanding what would normally be the significance of these matters, given that specific direction and the position taken by the defence at trial regarding this evidence, its admission should not be seen to have prejudiced a fair trial of the appellant.

85 Questions by the Crown Prosecutor similar to those asked by the detective, were addressed to the accused during the trial. That should not have occurred. However, it is significant especially in light of the pre-trial consideration of this very evidence between counsel, that no objection was taken at the time of the trial by defence counsel.

86 Passages in the trial transcript (after the charge and in the absence of the Jury) suggest that both counsel were proceeding at trial, at least in part, in an expectation that the accused would offer a particular explanation for the complaint being made against him, an expectation founded in the conduct of the committal proceeding and his ready observations to this effect when interviewed by the police officers. No such explanation was offered by the accused when he gave evidence, even when the matter was raised in cross-examination. As a consequence the issue was not pressed with the accused by the Crown.

87 Nevertheless, the learned trial Judge was alert to the risk introduced by this evidence. In view of his direct and clear direction to the jury and the position of the defence at trial on this issue, in my view in the particular circumstances of this case any risk of miscarriage of justice in this respect was sufficiently averted.

Ground 4: There was wrongly admitted into evidence statements by the interviewing detective along the lines that other witnesses had confirmed the complainants account to the police.

Ground 5: The evidence having been admitted and no such witnesses having been called, the learned trial Judge failed to direct the jury to disregard that evidence altogether.

88 On appeal, though not at trial, it was contended that some passages in the evidence of police witnesses and the video record of interview were inadmissible.

89 In the course of the video record of interview, a detective put to the appellant:-

"In fairness to you, I have to tell you that I have spoken to a number of people including your friend Adrian ... and he has told us certain things about what he saw."

90 The appellant submits that this statement should have been seen to be a threat to the accused, and implies that Adrian has confirmed the complainants version of events, so that the accused had better not lie. Whilst this may be a possible interpretation, it is not an obvious one either from the words or the context when the video record is viewed. No objection was taken at trial. Adrian was not called at trial.

91 As has been noted already, his Honour dealt expressly with this issue and expressly warned the jury against straying beyond the evidence they heard and conjecturing what persons such as Adrian might have said had they been called. He emphasised that any uncertainty in this respect told against the Crown, not the appellant. In my view, having regard to the circumstances, no miscarriage of justice resulted from the admission of this passage.

92 Further, in the course of the video interview, a detective stated that the other "mates" mentioned by the accused in the interview, would need to be spoken to. In the same context the detective said:-

"I'm going to conduct further inquiries in relation to this matter and you may or may not be charged depending on those inquiries."

93 Again, no objection was taken to this passage by experienced defence counsel. None of the other "mates" were called at trial. It was known before trial that the Crown would not call them. The observations just made with respect to the evidence re Adrian are repeated in respect of this evidence.

94 On appeal, but not at trial, objection was also taken to another passage in the video record of interview, where the detective had stated:-

"Well she was quite distressed when I spoke to her, but whether or not her story is true is something that I can't verify because I wasn't there, but she's. .... other people have seen the incident that took place, they have seen her demeanour and have heard from her shortly after she was seen, as you say, belting you or whatever she was going to you and she has told them the reason she was doing that and it's a little more than the fact that you asked her for a kiss."

95 This was a passage that had been the subject of editing following discussions between defence and prosecuting counsel. Each of the matters asserted by the detective was the subject of direct and admissible evidence at the trial, cf the evidence of Constable Grosetti, Victor Guerreiro and Leonizia Rodrigues. I am unable to discern that the admission of this evidence has produced a risk of a miscarriage of justice.

96 It is important to notice that, in the course of charging the jury, his Honour, emphasised that there were only two central witnesses and that the accused's "mates" were not called.

"... you may accept it as true that some of the mates have spoked to the police and given statements and those statements have been made available to the defence, but it is not for the defence to call any of the mates because it is not for the accused to establish his innocence in this case. Again we come back to first principles. The onus of proof is on the Crown; it's not on the accused. The fact is that the police in investigating this matter on the evidence apparently went out and spoke to the mates. The fact is that the police took statements from the mates, or some of them, and the fact is that the Crown have not called any of the mates to give evidence in this matter. The crown could have, of course, called the mates. The Crown could have called Adrian or Henry, or whoever his name was, or the man Lloyd, but the crown hasn't called any of those and so you are left in the dark and I am left in the dark as to what they could have said."

"You should in those circumstances, members of the jury, proceed on this assumption and this assumption only: you should proceed upon the assumption that they could not have said anything which would have assisted the Crown in its case. ... The Crown bears the onus of proof in this case. The Crown has not called them and you should not therefore assume they could have said anything which supports the Crown. You should in fact assume that they could not have said anything which supports the prosecution case."

"... what I'm saying to you about this aspect of the matter and about the matter generally is that you shouldn't speculate. ... Whatever anyone else could have said about it, other than the witnesses who have been called, is not before you. No doubt all sorts of people could have been called to give evidence in this case. There were bouncers around. There were many other people in the nightclub. They haven't been called. It may well be that you wish that they had been. When you retire to the jury room one or other of you might well say, 'I wonder what so-and-so could have said if he head been asked this question or that question'. The fact is that we don't know and we will never know what they could have said. The judgement you have to make in this case, members of the jury, is a judgement upon the evidence and only upon the evidence, so I do urge you not to theorise, not to speculate, not to regard yourselves, as it were, as involved in an investigation in this matter. You are not investigators. You are judges of fact and your task then is to judge the case upon the material that has been placed before you and only upon that material, upon the evidence and only upon the evidence."

99 It is to be observed that although the detective referred to other witnesses who were not called at trial, it was not suggested to the appellant or in the trial that they confirmed the complainant's account to the police. Indeed, it was the evidence of the accused at trial that he was separated from his mates (other than Adrian), and that they were not present at the time of the incident the subject of this charge.

100 In these circumstances the careful directions of the learned trial Judge appear adequate to have negated sufficiently any risk of miscarriage from the nature of these passages in the evidence.

101 Counsel for the appellant, who did not appear at trial, submitted that if these matters in isolation failed to demonstrate that the trial miscarried it was important to weigh their combined effect. This is not a case, however, in which viewing in combination the effect of the matters raised gives rise to some materially heightened possibility of miscarriage or introduces any additional consideration. For the reasons given I am not persuaded that any of the matters raised gave rise to a perceptible risk of miscarriage having regard in particular to his Honour's directions in respect of each of the matters. Viewing the matters in combination does not introduce such a risk of miscarriage.

102 Nor is this a case in which an evaluation of the evidence at trial, especially having regard to the specific matters raised on appeal, gives rise to a sense that it would be dangerous in all the circumstances to allow the verdict of guilty to stand. This is not a case where there are circumstances in any respect akin to those which led to the conclusion in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 that the verdict there was unsafe and unsatisfactory.

103 Whilst it is appropriate to view with considerable care and caution any conviction in circumstances where the real evidence consists of the uncorroborated account of one witness, especially where that has been denied consistently by the accused, scrutiny of the evidence and the directions in this case has failed to demonstrate that there is any significant reason to conclude that the trial miscarried, or that there is a perceptible risk of miscarriage, such that the verdict should be disturbed.

104 For these reasons the appeal should be dismissed.

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Judgment (165 paragraphs)

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Cases Cited (11)